STEVENS v. CABARRUS COUNTY BOARD OF EDUCATION

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TUWANNA STEVENS, )

)

Plaintiff, )

)

v. ) 1:20-cv-00335

)

CABARRUS COUNTY BOARD OF )

EDUCATION, CABARRUS COUNTY )

SCHOOLS, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

Before the court is the motion of Defendant Cabarrus County

Board of Education1 (“the Board”) to dismiss Plaintiff Tuwanna

Stevens’s amended complaint pursuant to Federal Rules of Civil

Procedure 12(b)(1), 12(b)(2), and 12(b)(6). (Doc. 17.) For the

reasons set forth below, the motion will be granted in part and

denied in part.

I. BACKGROUND

A. Factual Background

Stevens’s complaint, viewed in the light most favorable to

her, alleges the following:

From 2015 to 2019, Stevens — a black woman — worked as an

1 Although Stevens has filed suit against both Cabarrus County Board of

Education and Cabarrus County Schools, Cabarrus County Schools is not

itself an entity. (Doc. 1 at 1 fn.1.) However, Cabarrus County Board

of Education does business as “Cabarrus County Schools.” (Id.) As such,

the court accepts that Stevens intended to sue only Cabarrus County Board

of Education.

Assistant II in the School Nutrition Program (SNP) in the Cabarrus

County school district. (Doc. 15 ¶¶ 8–34.) Her primary

responsibilities were prepping food, stocking items, and

cashiering. (Id. ¶ 8.) Over the course of her employment, Stevens

worked at several different schools and allegedly endured repeated

verbal abuse from her non-black coworkers and supervisors. (Id.

¶¶ 11–29.)

During the 2015-16 school year, Stevens worked at Cox Mill

High School. (Id. ¶ 8.) After Stevens reported harassment by co-

workers there, her supervisor, Amy Hill, allegedly told her that

there was an issue with a “black rat” in her kitchen. (Id. ¶¶ 14–

17.) Stevens understood this to be a reference to her, due to her

race. (Id. ¶ 18.)

At some point in 2016, the Board received an anonymous letter

to bring attention to Stevens’s working conditions at Cox Mill.

(Id. ¶ 12.) In late April 2016, Stevens met with the SNP Director,

Gayle Buddenbum, to discuss her hostile and abusive work

environment. (Id. ¶ 20.) After that meeting, Stevens submitted

a written account of the abuse. (See id. ¶ 21.)

Near the end of the 2015-16 school year, Stevens was

transferred to Odell Elementary School. (Id. ¶ 22.) There, in

preparation for an upcoming renovation, Stevens was required to

pack up the cafeteria and clean out sheds. (Id.) She perceived

this transfer to be retaliation for her complaining about her

working conditions. (Id.)

Stevens was next transferred to Winkler Middle School where

she worked from 2016 to 2019. (See id. ¶¶ 24–34.) At Winkler,

Stevens continued to experience verbal abuse from her white

coworkers and her new supervisor, Staci Jerrell. (Id.) At least

one incident of verbal abuse was reported to the Human Resources

Department. (Id. ¶¶ 28-29.)

On November 15, 2018, Stevens applied for a position as a

Cafeteria Assistant II at Winkler, a position that provided

increased hours and potentially included a raise. (Id. ¶¶ 31,

20a, 21a.)2 Stevens submitted a second application for the

position on November 28, 2018. (Id. ¶ 22a.) On December 11, 2018,

she was selected for an interview and was subsequently interviewed

two days later. (Id. ¶¶ 23a, 24a.) On December 18, 2018, she

learned that she was not selected. (Id. ¶ 25a.) Instead, a less

qualified, non-black candidate received the position. (Id.

¶¶ 26a, 27a.) Later, when that candidate was unable to do the

job, Stevens was asked to take on that job’s responsibilities.

(Id. ¶ 27a.) However, she was never offered the position or given

the associated increase in hours or wages. (Id.)

Between 2015 and 2018, Stevens’s employee evaluations were

2 Due to a Word processing error in Stevens’s amended complaint,

paragraphs numbered 20–31 repeat. (See Doc. 15; Doc. 22 at 1 fn.1.) To

reduce confusion, the court refers to the repeating paragraphs as 20a-

31a.

mostly positive. (Id. ¶ 9.) However, for the 2018-19 school year

they were extremely poor. (Id. ¶¶ 30a–32.) On June 7, 2019, she

was told she would shortly be terminated and was ultimately

terminated on June 13, 2019 for subpar work performance. (Id.

¶¶ 33, 34.)

B. Procedural History

From 2018 to 2019, Stevens filed six charges of discrimination

with the Equal Employment Opportunity Commission (“EEOC”). The

EEOC dismissed five of the charges and gave Stevens notice of her

right to sue within ninety days.

Stevens’s first charge was filed on September 6, 2018 (“the

first charge”) and alleged that she experienced discrimination on

the basis of race and religion. (Doc. 17-1.) The charge indicated

that she was denied a promotion in 2017 and that she was subjected

to less favorable treatment in comparison to her co-workers. (Id.)

On September 26, 2018, the EEOC dismissed this charge and gave

Stevens notice of her right to bring suit on the claim within

ninety days. (Id.) Her second charge was filed on October 30,

2018 (“the second charge”) and alleged that she was retaliated

against for filing the first charge, although the charge did not

detail the alleged retaliation. (Doc. 17-2.) The EEOC dismissed

this charge on November 6, 2018, and again gave Stevens notice of

her right to bring suit within ninety days. (Id.) Stevens filed

similar charges alleging retaliation on February 19, June 5, and

June 13, 2019 (“the fourth charge,” “the fifth charge,” and “the

sixth charge,” respectively). (Docs. 17-4, 17-5, 17-6.) The EEOC

dismissed the fourth charge on July 2, 2019, and dismissed the

fifth and sixth charges on September 18, 2019. (Id.) With each

dismissal, the EEOC gave Stevens notice of her right to bring suit

within ninety days. (Id.)

In Stevens’s third charge, filed on December 11, 2018 (“the

third charge”), Stevens alleged retaliation and discrimination

based on race. (Doc. 17-3.) Stevens indicated that she continued

to suffer harassment and a hostile work environment following the

filing of her first two charges. (Id.) She also reported that

she had not been selected for the Cafeteria Assistant II position

and that a less-qualified, non-black applicant had been chosen.

(Id.) Based on these allegations, the EEOC found reasonable cause

to conclude that Stevens was subjected to race discrimination and

retaliation, and the EEOC attempted to conciliate the case as

required by Title VII. (Id.) When conciliation ultimately failed,

the EEOC gave Stevens, in a letter dated January 16, 2020, notice

of her right to bring suit on the claim within ninety days. (Id.)

On March 13, 2020, Stevens filed this lawsuit in Superior

Court in Cabarrus County for violations of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”), and the North

Carolina Equal Employment Practices Act (“EEPA”), N.C. Gen. Stat.

§ 143-422.1 et seq. (Doc. 3.) The Board timely removed the action

to this court, after which Stevens filed an amended complaint, on

June 26, 2020, in which she brings seven causes of action against

the Board: (1) violation of Title VII and 42 U.S.C. § 1981 based

on failure to promote and discriminatory termination; (2)

violation of Title VII and § 1981 based on retaliatory discharge;

(3) violation of 42 U.S.C. § 1983 for denials of her substantive

due process rights; (4) violation of Title VII based on a racially

hostile work environment; (5) intentional infliction of emotional

distress; (6) wrongful discharge in violation of public policy;

and (7) violation of the EEPA. (Doc. 15 ¶¶ 36–75.) The Board has

moved to dismiss each of these claims. (Doc. 17.) The motion is

now fully briefed and ready for resolution.3 (See Docs. 18, 22,

23.)

3 Although the Board has moved to dismiss all of Stevens’s claims,

Stevens’s opposition responds only to arguments pertaining to her Title

VII hostile work environment claim, her § 1983 claim, and the Board’s

waiver of governmental immunity in relation to her state law claims.

(See Doc. 22.) Per Local Rule 7.3(k), “[t]he failure to file a brief

or response within the time specified in this rule shall constitute a

waiver of the right thereafter to file such brief or response, except

upon a showing of excusable neglect.” M.D.N.C. L.R. 7.3(k). Local Rule

7.2(a) requires that response briefs contain an “argument, which shall

refer to all statutes, rules and authorities relied upon.” Id. 7.2(a).

The court has construed these rules to apply to unresponded-to arguments

as well. See Brand v. N.C. Dep't of Crime Control & Pub. Safety, 352

F. Supp. 2d 606, 618 (M.D.N.C. 2004) (“In Plaintiff's brief in response

to Defendants’ motion for summary judgment, Plaintiff does not address

Defendants’[] motion concerning his hostile work environment claim. By

failing to respond, Plaintiff concedes that he has not stated a hostile

work environment claim.”); Kinetic Concepts, Inc. v. ConvaTec Inc., No.

1:08CV00918, 2010 WL 1667285, at *7–8 (M.D.N.C. Apr. 23, 2010)

(collecting cases). However, the Fourth Circuit requires substantive

review of even unopposed motions to dismiss. See Stevenson v. City of

Seat Pleasant, Md., 743 F.3d 411, 416 n.3 (4th Cir. 2014) (“Even though

[the plaintiffs] did not challenge the motions to dismiss, we note that

II. ANALYSIS

A. Federal Claims

Stevens brings four federal causes of action based on

violations of Title VII, § 1981, and § 1983. The Board has moved

to dismiss each pursuant to Federal Rule of Civil Procedure Rule

12(b)(6).

1. Legal Standard

Federal Rule of Civil Procedure 8(a)(2) provides that a

complaint must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P.

(8)(a)(2). Under Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570, (2007)). A claim is plausible “when

the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. In considering a Rule 12(b)(6) motion,

a court “must accept as true all of the factual allegations

contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam), and all reasonable inferences must be drawn

the district court nevertheless has an obligation to review the motions

to ensure that dismissal is proper.”). As such, the court substantively

reviews each of Stevens’s claims to determine whether dismissal is

appropriate.

in the plaintiff’s favor. Ibarra v. United States, 120 F.3d 472,

474 (4th Cir. 1997). “Rule 12(b)(6) protects against meritless

litigation by requiring sufficient factual allegation ‘to raise a

right to relief above the speculative level’ so as to ‘nudge[]

the[] claims across the line from conceivable to plausible.’”

Sauers v. Winston-Salem/Forsyth Cnty. Bd. Of Educ., 179 F. Supp.

3d. 544, 555 (M.D.N.C. 2016) (alteration in original) (quoting

Twombly, 550 U.S. at 555). “[T]he complaint must ‘state[] a

plausible claim for relief’ that permit[s] the court to infer more

than the mere possibility of misconduct based upon ‘its judicial

experience and common sense.’” Coleman v. Md. Ct. App., 626 F.3d

187, 190 (4th Cir. 2010) (alterations in original) (quoting Iqbal,

556 U.S. at 679). Thus, mere legal conclusions are not accepted

as true, and “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

Iqbal, 556 U.S. at 678. In reviewing a Rule 12(b)(6) motion, the

court may “consider documents attached to the complaint, see Fed.

R. Civ. P. 10(c), as well as those attached to the motion to

dismiss, so long as they are integral to the complaint and

authentic.” Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180

(4th Cir. 2009).

2. Section 1981 and 1983 claims

Stevens brings claims for failure to promote, discriminatory

termination, and retaliatory discharge pursuant to 42 U.S.C.

§ 1981.4 She also brings a claim for denial of her substantive

due process rights in violation of 42 U.S.C. § 1983.

a. Section 1981 claims against municipalities

As a threshold matter, it must be determined whether Stevens’s

§ 1981 claims may be considered on the merits. The Board correctly

points out that there is no freestanding claim against a municipal

employer, such as the Board, under § 1981. White v. Gaston Cnty.

Bd. of Educ., No. 316CV00552MOCDSC, 2017 WL 220134, at *4–5

(W.D.N.C. Jan. 18, 2017) (citing Jett v. Dall. Indep. Sch.

Dist., 491 U.S. 701, 771 (1989)). However, this alone is

insufficient to warrant dismissal. “[W]hen suit is brought against

a state actor, § 1983 is the ‘exclusive federal remedy for

violation of the rights guaranteed in § 1981.’” Dennis v. Cnty.

of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995) (quoting Jett, 491

U.S. at 733). As such, for Stevens to recover against the Board

for her § 1981 claims, she must properly establish municipal

liability under § 1983. See also Alexander v. City of Greensboro,

762 F. Supp. 2d 764, 781 (M.D.N.C. 2011) (reviewing plaintiffs’

§ 1981 claim against a municipality for satisfaction of the

requirements for liability under § 1983).

b. Municipal liability

In enacting § 1983, Congress did not intend to impose

4 Stevens brings similar claims under Title VII, which are addressed

infra.

liability on a municipality for a violation of a plaintiff's

constitutional rights unless deliberate action attributable to the

municipality itself was the “moving force” behind the plaintiff's

deprivation. Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v.

Brown, 520 U.S. 397 (1997) (citing Monell v. Dep’t of Soc. Servs.

of City of N.Y., 436 U.S. 658, 694 (1978)). As such, a plaintiff

must prove two essential elements to establish liability under

§ 1983: “(1) that the defendant[] acted under color of state law

and (2) that the plaintiff suffered a deprivation of a

constitutional right as a result of that action.” Davis v. Durham

Mental Health Developmental Disabilities Substance Abuse Area

Auth., 320 F. Supp. 2d 378, 403 (M.D.N.C. 2004) (citing Gomez v.

Toledo, 446 U.S. 635 (1980)).

Under the “color of state law” requirement, a § 1983 plaintiff

alleging § 1981 race discrimination must adequately plead and

ultimately prove three elements: “(1) the existence of an official

policy or custom (2) that is fairly attributable to the local

government (3) that proximately caused the underlying § 1981 race

discrimination.” Id. (citing Jordan ex rel. Jordan v. Jackson, 15

F.3d 333, 338 (4th Cir. 1994)); see also Monell, 436 U.S. at 691

(“Congress did not intend municipalities to be held liable unless

action pursuant to official municipal policy of some nature caused

a constitutional tort.”). As such, municipalities cannot be held

liable under § 1983 on a theory of respondeat superior. Monell,

436 U.S. at 691. An official policy or custom giving rise to

municipal liability may be created either “(1) through an express

policy . . . ; (2) through the decisions of a person with final

policymaking authority; (3) through an omission . . . that

manifests deliberate indifference to the rights of citizens; or

(4) through a practice that is so persistent and widespread as to

constitute a custom or usage with the force of law.” Lytle v.

Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (internal quotation marks

omitted). Generally, only a final policymaker can create official

custom or policy on behalf of an entity. See Love–Lane v. Martin,

355 F.3d 766, 782 (4th Cir. 2004). This sort of policymaking

refers to the “authority to set and implement general goals and

programs of municipal government, as opposed to discretionary

authority in purely operational aspects of government.” Spell v.

McDaniel, 824 F.2d 1380, 1386 (4th Cir. 1987). The existence of

such authority is determined by state law. City of St. Louis v.

Praprotnik, 485 U.S. 112, 124 (1988) (plurality opinion); Riddick

v. Sch. Bd. of City of Portsmouth, 238 F.3d 518, 523 (4th Cir.

2000).

Under North Carolina law, a school board is the final

policymaker with regard to the employment and discharge of school

employees. See N.C. Gen. Stat. § 115C-45(c) (2020) (“An appeal

shall lie to the local board of education from any final

administrative decision in . . . the terms of conditions of

employment or employment status of a school employee.”); see also

Barrett v. Bd. of Educ. of Johnston Cnty., N.C., 13 F. Supp. 3d

502, 511 (E.D.N.C. 2014) (“North Carolina vests the Board itself

with the authority to make final policy for the local school

district.”); Marshall v. Frederick, No. 5:19-CV-69-BO, 2019 WL

3822321, at *3 (E.D.N.C. Aug. 14, 2019) (“In North Carolina,

school boards ‘have general control and supervision of all matters

pertaining to the public schools.’” (quoting N.C. Gen. Stat.

§ 115C-36)).

Stevens acknowledges that her claims do not arise from actions

taken directly by the Board. (See, e.g., Doc. 22 at 8–9

(“Plaintiff has alleged that multiple co-workers and supervisors

created a hostile work environment . . . . Co-workers used abusive

language toward Plaintiff, and supervisors ignored Plaintiff’s

complaints or inflicted abuse upon Plaintiff themselves.”

(emphasis added)).) As such, because only final policymakers can

create official custom or policy on behalf of the entity, the Board

can be liable for the actions of Stevens’s coworkers and

supervisors only if it knew of their improper conduct and ratified

it in some way such that its action or inaction constituted an

official policy or custom. See Love–Lane, 355 F.3d at 782.

In her opposition,5 Stevens argues that municipal liability

5 The complaint itself does not identify any official policy or custom

that allegedly led to the deprivation of her rights. Although the

is proper on the basis of the Board’s deliberate indifference to

the need for racial sensitivity training, inherent bias training,

and other training measures. (See Doc. 22 at 9–10.) The complaint

itself contains no allegations in support of Stevens’s failure to

train claim. See JTH Tax, Inc. v. Williams, 310 F. Supp. 3d 648,

653 (E.D. Va. 2018) (“[T]he court need not consider new allegations

or new facts that were available to the plaintiff when it filed

the complaint, but were only introduced in an opposition to a

defendant's motion to dismiss.” (internal quotation marks

omitted)); see also Barclay White Skanska, Inc. v. Battelle Mem’l

Inst., 262 F. App’x 556, 563 (4th Cir. 2008).6 Regardless, the

claim does not support municipal liability here.

Where an alleged constitutional deprivation results from

municipal inaction, “rigorous standards of culpability and

causation must be applied to ensure that the municipality is not

held liable solely for the actions of its employee.” Bd. of Cnty.

Comm'rs, 520 U.S. at 405. To state an actionable § 1983 claim

against a municipality based on failure to train, a plaintiff must

complaint states — in relation to Stevens’s § 1983 claim — that the Board

failed to “adhere to its own express written policies” (see Doc. 15

¶ 54), Stevens does not specify any policy that the Board failed to

adhere to, nor does she return to this argument in response to the

Board’s present motion.

6 While the Fourth Circuit does not ordinarily accord precedential value

to its unpublished opinions, it has noted that they “are entitled only

to the weight they generate by the persuasiveness of their reasoning,”

and they are cited herein on that basis. See Collins v. Pond Creek

Mining Co., 468 F.3d 213, 219 (4th Cir. 2006) (citation omitted).

allege facts that plausibly suggest the municipality was more than

merely negligent in its training.7 See Spell v. McDaniel, 824 F.2d

1380, 1390 (4th Cir. 1987). “Only where a failure to train

reflects a deliberate or conscious choice by a municipality . . .

can a city be liable for such a failure under § 1983.” City of

Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989) (internal

quotation marks omitted). Deliberate indifference to the need for

specific training almost always requires a showing of a “pattern

of constitutional violations,” but in very limited circumstances

can be established where the violation was “a highly predictable

consequence of a failure to equip [employees] with specific tools

to handle recurring situations.” Bd. of Cnty. Comm'rs, 520 U.S.

at 402. Additionally, for liability to attach, there must be a

“direct causal link” between “a specific deficiency in training

and the particular violation alleged.” Buffington v. Balt. Cnty.,

Md., 913 F.2d 113, 122 (4th Cir. 1990). Ultimately, “a

municipality's culpability for a deprivation of rights is at its

most tenuous where a claim turns on a failure to train.” Connick

v. Thompson, 563 U.S. 51, 61 (2011).

7 While failure to train claims typically arise in the context of law

enforcement, courts have applied the same framework to such claims in

the context of employment discrimination. See, e.g., Sledge v. Dist.

of Columbia, 63 F. Supp. 3d 1, 28 (D.D.C. 2014); Jackson v. City of

Centreville, 899 F. Supp. 2d 1209, 1220 (N.D. Ala. 2012); Frierson v.

Atlanta Indep. Sch. Sys., No. 1:10-CV-3826-ODE-LTW, 2013 WL 12328447,

at *13–14 (N.D. Ga. Aug. 20, 2013), report and recommendation adopted

in part, rejected in part, 22 F. Supp. 3d 1264 (N.D. Ga. 2014).

Here, Stevens’s complaint contains no facts that suggest the

Board acted deliberately in failing to impose additional training

requirements in response to Stevens’s claims. First, Stevens does

not allege a pattern of constitutional violations that reflect the

Board’s conscious choice to disregard racial discrimination and

retaliation on the part of school employees. Although Stevens

outlines a number of instances of discrimination that she

experienced personally, she has not indicated that any other

employee experienced similar harassment such that her experiences

were part of a broader pattern of constitutional violations.

Further, she has not alleged that the discrimination she

experienced was a highly predictable consequence the Board’s

failure to provide employees with greater racial sensitivity and

related trainings.

Second, Stevens has not alleged facts indicating that the

Board was actually aware of the discrimination she faced at

Winkler. Although she indicates that she reported multiple

instances of harassment to a supervisor or the HR Department, she

does not claim that she contacted the Board or otherwise initiated

the Board’s appeal procedures to have her complaints reviewed.

She also does not indicate that any person with whom she discussed

her complaints had an obligation to, or actually did, inform the

Board of those complaints. Nor does she indicate that she, her

coworkers, or her supervisors had any interactions with the Board

at all.8 Further, although Stevens filed multiple charges with

the EEOC, none of the charges was directed to the Board. For each

charge, Stevens listed her employer as “Cabarrus County School” or

“Cabarrus County School Nutrition Program.” (See Docs. 17–1, 17-

2, 17-3, 17-4, 17-5, 17-6.) Rather than providing the address and

phone number of the Board, each charge listed the contact

information of the district’s auxiliary services. (See id.) All

notices from the EEOC in response to those charges were sent to

the Director of Human Resources, not the Board. (See id.)

For these reasons, Stevens has failed to allege facts to

support a plausible claim that the Board was deliberately

indifferent to maintain municipal liability under § 1983. The

Board’s motion to dismiss Stevens’s § 1981 and § 1983 claims will

therefore be granted.

3. Title VII claims

The Board moves to dismiss all Title VII claims as time-

barred, alleging that Stevens failed to file suit within the

ninety-day statutory filing period.9 As the ninety-day filing

8 Although Stevens alleges that an anonymous letter was sent to the Board

in 2016, this letter pertained to her working conditions at Cox Mill

High School. After that letter was sent, Stevens met with the SNP

Director and was ultimately transferred to Winkler. Since being

transferred to Winkler in late 2016 — the school where Stevens’s failure

to promote, discriminatory termination, and retaliatory discharge claims

ultimately arose — Stevens has not indicated that she or anyone else has

had contact with the Board.

9 Unlike § 1983 plaintiffs, Title VII plaintiffs may recover on a theory

of respondeat superior. See Gebser v. Lago Vista Indep. Sch. Dist., 524

requirement under 42 U.S.C. § 2000e “is not a jurisdictional

prerequisite to suit in federal court, but a requirement that,

like a statute of limitations, is subject to waiver, estoppel, and

equitable tolling,” the Board’s motion to dismiss these claims is

properly considered pursuant to Federal Rule 12(b)(6). Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); see also

Laber v. Harvey, 438 F.3d 404, 434 (4th Cir. 2006).

a. Timeliness of suit

The Board alleges that Stevens filed suit outside the ninety-

day statutory filing period for each of her six EEOC charges. In

relation to five of her six charges, as Stevens appears to

acknowledge, the Board is correct. (See Doc. 22 at 7 (“Although

the Complaint was only filed in time to meet the timing requirement

for Charge 3 . . . .”).) Stevens initially filed her lawsuit in

the Superior Court division of Cabarrus County on March 13, 2020.

In order for the lawsuit to be timely in relation to her Title VII

claims, she must have received notice of the right to sue, at the

latest, ninety days before the filing of that action — that is, on

or after December 14, 2019. Stevens received notice on her first

U.S. 274, 283 (1998). As such, Stevens’s failure to allege facts

indicating that the discrimination she endured was pursuant to an

“official policy or custom” — which is fatal to her §§ 1981 and 1983

claims — does not bar her Title VII claims. “Knowledge of harassment

can be imputed to an employer if a reasonable person, intent on complying

with Title VII,” would have known about the harassment. Ocheltree v.

Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir. 2003) (internal

quotation marks and punctuation omitted).

two EEOC charges on September 26, 2018 and November 2, 2018. She

received notice on her last three EEOC charges on July 2, 2019 and

September 18, 2019. As Stevens received each of these notices

prior to December 14, 2019, claims based on these charges are

untimely.

In relation to Stevens’s third charge, however, suit was

timely filed. Stevens received notice of her right to sue on

January 16, 2020, well within the ninety-day statutory filing

period. As such, suit on this charge was timely when Stevens filed

her original complaint.

The Board argues, however, that suit on claims arising from

Stevens’s third charge is untimely because Stevens did not bring

suit on the third charge until she filed her amended complaint on

June 26, 2020, which was outside the statutory filing period.

(Doc. 18 at 12.) In response, Steven argues that, pursuant to

Federal Rule of Civil Procedure 15(c), the amended complaint

relates back to the date of the filing of the original complaint.

(Doc. 22 at 6–8.) The Board replies that the doctrine of relation-

back should not apply because the facts underlying the third EEOC

charge did not appear in her original complaint. (Doc. 23 at 1-

4.)

Rule 15(c)(1) provides that “[a]n amendment to a pleading

relates back to the date of the original pleading when . . . (B)

the amendment asserts a claim or defense that arose out of the

conduct, transaction, or occurrence set out — or attempted to be

set out — in the original pleading.” Fed. R. Civ. P. 15(c). To

relate back, there must be a “factual nexus between the amendment

and the original complaint.” Grattan v. Burnett, 710 F.2d 160,

163 (4th Cir. 1983), aff'd, 468 U.S. 42 (1984). “[I]f there is

some factual nexus[,] an amended claim is liberally construed to

relate back to the original complaint if the defendant had notice

of the claim and will not be prejudiced by the amendment.” Id.

When a party “has been given fair notice of a claim within the

limitations period and will suffer no improper prejudice in

defending it, the liberal amendment policies of the Federal Rules

favor relation-back.” Goodman v. Praxair, Inc., 494 F.3d 458, 471

(4th Cir. 2007).

In this case, there is a factual nexus between the Title VII

claims of the original complaint and the Title VII claims of the

amended complaint. Specifically, the broad facts underlying the

claims brought in the original and amended complaints are the same

in that they revolve around Stevens’s employment in the SNP and

the discrimination she experienced therein. Although the third

charge revolves around her December 2018 failure to promote claim

and the original complaint did not detail this event, the third

charge was incorporated by reference in the original complaint.

(See Doc. 3 ¶ 68 (“[Stevens] filed subsequent charges with the

EEOC in November 2018, December 2018, February 2019, and May 2019,

due to [the Board’s] continued discrimination of [Stevens] based

on race and retaliation.”).) Because the amended complaint details

the third charge and that charge was referred to and arises from

the same series of occurrences as those alleged in the original

complaint, there is sufficient factual nexus between the original

and amended complaints to apply the doctrine of relation-back such

that suit on the third charge is timely.

In applying the doctrine of relation-back, the Board will

suffer no undue prejudice in defending against the amended

complaint. The Board had notice of the failure to promote claim

brought in the amended complaint because Stevens filed the third

charge before initiating this lawsuit and incorporated that charge

by reference in her original complaint. See Gratten, 710 F.2d at

163 (finding that defendants were not prejudiced by new claims in

an amended complaint because plaintiffs “complained of race and

sex discrimination in complaints filed with the EEOC . . . [and

thus] defendants were bound to have known of” and anticipated those

claims based on the facts alleged in the original complaint).

Consequently, the amended complaint relates back to the date of

the filing of the original complaint, and Stevens’s lawsuit on the

third charge was timely.

b. Scope of timely charge

The Board contends that even if the lawsuit on the third

charge is timely, Stevens’s claims — particularly her hostile work

environment claim — were not raised in the charge and are therefore

not properly before the court. (Doc. 18 at 12–13; Doc. 23 at 4–

7.) Steven responds the third charge sufficiently alleges that

she was subjected to a hostile work environment. (Doc. 22 at 6–

7.)

To bring suit under Title VII, a claimant must first exhaust

her administrative remedies by filing an appropriate charge with

the EEOC. See Sloop v. Mem’l Mission Hosp., Inc., 198 F.3d 147,

148 (4th Cir. 1999). “The allegations contained in the

administrative charge . . . generally operate to limit the scope

of any subsequent judicial complaint,” Evans v. Techs.

Applications & Serv. Co., 80 F.3d 954, 962–63 (4th Cir. 1996), in

that “factual allegations made in formal litigation must

correspond to those set forth in the administrative charge,” Chacko

v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005). A plaintiff

cannot raise claims under Title VII that “exceed the scope of the

EEOC charge and any charges that would naturally have arisen from

an investigation thereof.” Dennis, 55 F.3d at 156; see also

Evans, 80 F.3d at 963 (“Only those discrimination claims stated in

the initial charge, those reasonably related to the original

complaint, and those developed by reasonable investigation of the

original complaint may be maintained in a subsequent Title VII

lawsuit.”).

Although courts construe administrative charges liberally,

“[i]f the factual foundation in the administrative charge is too

vague to support a claim that is later presented in subsequent

litigation, that claim will [] be procedurally barred.” Chacko,

429 F.3d at 508 (citing Taylor v. Va. Union Univ., 193 F.3d 219,

239 (4th Cir. 1999) (en banc)). A charge must be “sufficiently

precise to identify the parties, and to describe generally the

action or practices complained of.” Keener v. Universal Cos., 128

F. Supp. 3d 902, 912 (M.D.N.C. 2015) (quoting Chacko, 429 F.3d at

508). Further, a plaintiff cannot bring suit on a claim under

Title VII where the “charge[] reference[s] different time frames,

actors, and discriminatory conduct than the central factual

allegations in h[er] formal suit,” id. (quoting Chacko, 429 F.3d

at 508) (alterations in original), or the charge “alleges one type

of discrimination — such as discriminatory failure to promote —

and the claim encompasses another type — such as discrimination in

pay and benefits,” Chacko, 429 F.3d at 509. Similarly, an

administrative charge that alleges a discrete discriminatory act

is considered insufficient to support suit where the plaintiff

subsequently alleges a broader pattern of misconduct. Id. (citing

Dennis, 55 F.3d at 153).

Here, Stevens’s third EEOC charge states:10

10 The court replicates the dates as stated in the text of the third

charge. (See Doc. 17-3.) In response to this charge, the EEOC provided

alternate dates. Specifically, the EEOC indicated that Stevens was

selected for an interview on December 11, 2018, interviewed on December

13, 2018, and was notified that she did not receive the position on

Since filing [the first and second] EEOC Charges . . .

I have continued to be harassed and subjected to a

hostile work environment by management and employees.

On November 15 & 28, 2018, I applied for a 5.5-hour

position. On November 19 & 21, 2018, I asked my manager,

Stacy Jerrell (White), if she had heard if a selection

had been made. Both times Ms. Jerrell replied no.

However, around November 7, 2018, I noticed a less

experienced employee (Hispanic) being trained for the

position, and is currently receiving more hours than me.

Upon knowledge and belief, other employees (non-Black)

are called in for extra hours but I am not.

I believe I have been discriminated against in violation

of Title VII of the Civil Rights Act of 1964, as amended,

based on race (Black), and subjected to retaliation for

participating in a protected activity.

(Doc. 17-3 at 1.) On the charge form, Stevens indicated that she

was alleging discrimination based both on race and retaliation.

She listed the incident dates as November 7, 2018 to December 11,

2018, but she also indicated that the charge represented a

continuing action. (Id.)

This charge sufficiently alleges facts to support Stevens’s

failure to promote claim. The charge identified at least one

involved party — Jerrell — and described the actions complained of

— the failure to promote her, the decision to promote a less-

experienced employee instead, and the provision of more hours to

other employees. The Board appears to accept as much. (See Doc.

23 at 5 (“All of the facts described in the charge relate to a

December 18, 2018. (Id.) In discussing the factual allegations in

Section I.A. above, the court provides the dates alleged in the complaint

which are consistent with those provided by the EEOC. (See Doc. 15

¶¶ 23–25.)

discrete employment action — that is, a job position for which

Plaintiff . . . was not selected.”).) Therefore, the court accepts

that Stevens has properly exhausted her failure to promote claim.

The Board argues, however, that Stevens’s third charge does

not properly exhaust her hostile work environment claim.11 (Doc.

18 at 12–13; Doc. 23 at 4–7.) In response, Stevens argues that

the third charge adequately alleges a hostile work environment

claim and that the remaining five charges provide “background

evidence” in support of this claim. (Doc. 22 at 6–8.)

“Hostile environment claims are different in kind from

discrete acts” in that, by their very nature, such claims involve

repeated conduct. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 115 (2002). A hostile work environment is one in which “the

workplace is permeated with discriminatory intimidation, ridicule,

and insult that is sufficiently severe or pervasive to alter the

11 The Board does not offer any argument regarding the retaliation claim

within Stevens’s third charge or how that claim relates to Stevens’s

current Title VII action for retaliatory discharge. However, the

retaliatory discharge claim brought in the amended complaint is distinct

from the retaliation claimed in the third charge. Further, a plaintiff

may generally raise a retaliation claim based on the filing of a timely

EEOC charge for the first time in federal court, as long as the claim

is “related to” and “gr[ew] out” of the EEOC charge while the charge

remained pending. Brown v. Runyon, 139 F.3d 888 (4th Cir. 1998) (citing

Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992)); see also Jones v. Calvert

Grp., Ltd., 551 F.3d 297, 302 (4th Cir. 2009). Because Stevens alleges

that she was discharged in retaliation for filing her EEOC charges and

the discharge occurred during the pendency of the third charge, non-

exhaustion does not bar her retaliatory discharge claim in the present

action. Therefore, the court considers, infra, whether Stevens has

sufficiently stated a claim for retaliation under Title VII to survive

dismissal.

conditions of the victim's employment and create an abusive working

environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993) (internal quotation marks and citations omitted). Though

the court may consider the “entire scope of a hostile work

environment claim, including behavior alleged outside the

statutory time period,” there still must be some “act contributing

to that hostile environment [that] takes place within the statutory

time period.” Morgan, 536 U.S. at 105. Otherwise, “potential

Title VII plaintiffs could evade [the limitations] requirements

simply by seeking additional Notices of Right to Sue whenever they

pleased,” rendering the ninety-day limitations period

“meaningless.” Howard v. Am. Inst. of Certified Pub. Accts., No.

1:08CV483, 2008 WL 5232794, at *3 (M.D.N.C. Dec. 12, 2008), report

and recommendation adopted, No. 1:08CV483, 2009 WL 1173017

(M.D.N.C. Apr. 27, 2009) (quoting Lo v. Pan Am. World Airways,

Inc., 787 F.2d 827, 828 (2d Cir. 1986)).

Here, Stevens’s third charge does not provide any factual

detail underpinning her hostile work environment claim. The charge

does not indicate any party, action, or practice that contributed

to a hostile work environment. Rather, the third charge indicates

merely that she was “harassed and subjected to a hostile work

environment by management and employees.” The remaining

allegations in the third charge relate to her discrete failure to

promote claim. Based on the single vague allegation in the third

charge, the EEOC would not have been aware of or able to

investigate the harassing behavior that contributed to the claimed

hostile work environment.

It is true that Stevens’s third charge references her first

and second charges, and those earlier charges may shed light on

the discriminatory acts that created the hostile work environment

mentioned in the third charge. However, while Stevens may use

prior, time-barred charges as background evidence in support of

a timely hostile work environment claim, time-barred charges

cannot be used to support a hostile work environment claim where

the timely charge itself does not sufficiently allege at least one

contributing act within the statutory filing period. See Morgan,

536 U.S. at 105, 113; see also Birch v. Peters, 25 F. App'x 122,

123 (4th Cir. 2001) (“A claimant who fails to file a complaint

within the ninety-day statutory time period mandated by Title VII

. . . generally forfeits her right to pursue her claims.”)

(citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149–51

(1984)).

Because Stevens’s third charge does not sufficiently allege

an act contributing to a hostile work environment, Stevens cannot

rely on untimely charges to support that claim. Her present action

for hostile work environment is beyond the scope of the third

charge, and the Board’s motion to dismiss Stevens’s Title VII

hostile work environment claim will therefore be granted.

c. Sufficiency of pleadings

The Board argues that even if Stevens’s third charge was

timely and the claims that are within its scope are properly before

the court, Stevens has failed to sufficiently state her causes of

action to survive dismissal under Rule 12(b)(6). Having found

that the scope of the third charge is limited to Stevens’s failure

to promote and related retaliation claims, the court reviews only

these claims for sufficiency.

i. Failure to promote

Stevens contends the Board violated Title VII, 42 U.S.C.

§ 2000e–2, because she was not promoted in November/December 2018

in part due to her race. Stevens does not offer direct evidence

of discrimination. Rather, she indicates that she applied for a

promotion and received an interview, but a less-experienced, non-

black candidate received the promotion instead.

In a case alleging discriminatory failure to promote, a

plaintiff must prove that she (1) is a member of a protected class;

(2) applied for a position; (3) was qualified for the position;

and (4) was rejected under circumstances giving rise to an

inference of unlawful discrimination. Amirmokri v. Balt. Gas &

Elec. Co., 60 F.3d 1126, 1129 (4th Cir. 1995). At the present

stage, Stevens need not plead a prima facie case to survive

dismissal. Bing v. Brivo Sys., LLC, 959 F.3d 605, 616–17 (4th

Cir. 2020). Rather, she must plausibly state a violation of Title

VII “above a speculative level.” Id.

Here, Stevens has plausibly pleaded her claim for

discriminatory failure to promote. She is a member of a protected

class, applied for a promotion in November 2018, alleges she was

qualified for the position, and was not awarded the position.

Instead, an allegedly less-qualified employee who was not a member

of her protected class received the position, giving rise to an

inference of unlawful discrimination. McCaskey v. Henry, 461 F.

App'x 268, 270 (4th Cir. 2012) (“A showing that a member outside

of the protected class received a promotion instead of the

plaintiff is sufficient to create an inference of

discrimination.”) (citing Carter v. Ball, 33 F.3d 450, 458 (4th

Cir. 1994)). This is sufficient to state a claim of discriminatory

failure to promote under Title VII and, as such, the Board’s motion

to dismiss this claim will be denied.

ii. Retaliatory discharge

Stevens next contends that the Board violated Title VII by

discharging her in retaliation for filing charges of

discrimination with the EEOC.

Title VII makes it an “unlawful employment practice for an

employer to discriminate against any of his employees . . . because

he has opposed any practice made an unlawful employment practice

by this title, or because he has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under this title.” 42 U.S.C. § 2000e–3(a)

(2020). Generally speaking, to state a claim for retaliatory

discharge under Title VII, a plaintiff must show (1) she engaged

in protected activity, (2) the employer took an adverse action

against her, and (3) a causal connection existed between the

protected activity and the adverse action. Carter, 33 F.3d at

460; Ross v. Commc’ns Satellite Corp., 759 F.2d 355, 365 (4th Cir.

1985); Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 258

(4th Cir. 1998); Causey v. Balog, 162 F.3d 795, 803 (4th Cir.

1998). In the context of retaliation, “adverse action” encompasses

actions “that a reasonable employee would have found . . .

materially adverse, which . . . means it well might have dissuaded

a reasonable worker from making or supporting a charge of

discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 68 (2006) (internal quotation marks omitted); see also

Laird v. Fairfax Cnty., Va., 978 F.3d 887, 893 (4th Cir. 2020)

(“[T]he harm must be a significant detriment, not relatively

insubstantial or trivial.” (emphasis in original) (internal

quotation marks omitted)). Whether an action is materially adverse

is context-specific. Burlington N., 548 U.S. at 69. An employer's

action that “may make little difference to many workers, but may

matter enormously” to a particular plaintiff, may constitute a

materially adverse action. Id.

Here, Stevens has sufficiently alleged facts to support the

first two requirements of a retaliation claim. First, her filing

of charges with the EEOC constitutes a protected activity under

Title VII. Jefferies v. UNC Reg'l Physicians Pediatrics, 392 F.

Supp. 3d 620, 629 (M.D.N.C. 2019). Second, Stevens suffered an

adverse action, at least in that she was terminated in June 2019.

Burlington N., 548 U.S. at 68. Further, taking the allegations in

the light most favorable to Stevens, her incorporated time-barred

charges indicate she may have been subjected to additional adverse

actions. See Morgan, 536 U.S. at 113–14 (allowing time-barred

charges to be brought as background evidence in support of a timely

charge of discrimination). Per the fourth charge, in February

2019, Stevens was forced to substitute at other schools throughout

the district while other similarly-situated employees were not.

(See Doc. 17-4.) Per the fifth charge, on May 30, 2019, Stevens

was allegedly subjected to an undeserved negative employee

evaluation. (See Doc. 17-5.) Taken together, Stevens has

plausibly alleged that she was subjected to a materially adverse

action within the meaning of Title VII in the retaliation context.

To allege the third required element of a retaliation claim

— causal connection — Stevens must show (1) that the protected

activity preceded the materially adverse action and (2) that the

employer knew the employee engaged in a protected activity. See

Causey, 162 F.3d at 803-04 (stating that “[k]nowledge of a charge

is essential to a retaliation claim”); see also Dowe v. Total

Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th

Cir. 1998) (“Since, by definition, an employer cannot take action

because of a factor of which it is unaware, the employer's

knowledge that the plaintiff engaged in a protected activity is

absolutely necessary to establish the third element of the prima

facie case.”). At the pleading stage, however, a plaintiff may

indicate causation by demonstrating that there is a close temporal

proximity between the adverse action and the plaintiff’s protected

activity. Carter, 33 F.3d at 460 (discussing that close temporal

proximity can be “strongly suggestive of retaliatory motive and

thus indirect proof of causation”). Although the Fourth Circuit

has not adopted “a bright temporal line,” a lapse of three or four

months “between the protected activities and discharge” has been

considered “‘too long to establish a causal connection by temporal

proximity alone.’” Perry v. Kappos, 489 F. App’x 637, 643 (4th

Cir. 2012) (quoting Pascual v. Lowe's Home Ctrs., Inc., 193 F.

App’x 229, 233 (4th Cir. 2006)). Where temporal proximity between

a protected activity and an alleged adverse action is absent,

“evidence of recurring retaliatory animus during the intervening

period can be sufficient to satisfy the element of causation.”

Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007).

Here, Stevens’s third charge was filed on December 11, 2018.

(See Doc. 17-3.) As over seven months elapsed between the filing

of the charge and Stevens’s termination on June 13, 2019, the

temporal proximity of this charge to her ultimate discharge is not

alone suggestive of a causal connection. However, as discussed

above, the third charge may be considered in light of Stevens’s

subsequently-filed time-barred charges. See Morgan, 536 U.S. at

113. Through these charges, Stevens has plausibly alleged a

recurring retaliatory animus during the intervening period to

support an inference of causation at this stage. As indicated in

the fourth charge, Stevens alleges she was subjected to an adverse

action only two months after the filing of the third charge in

that she was forced to work in other schools. Then, three months

after that, she claims she was subjected to an undeserved negative

employee evaluation. At this early stage, these occurrences are

adequately close in temporal proximity to avoid a motion to

dismiss.

Therefore, Stevens has plausibly stated a claim for

retaliatory discharge in violation of Title VII such that the

Board’s motion to dismiss will be denied.

B. State law claims

Stevens next brings claims under North Carolina state law for

intentional infliction of emotional distress, wrongful discharge

in violation of public policy, and violation of the North Carolina

EEPA. In response, the Board asserts governmental immunity and

moves for dismissal pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(b)(2). (Doc. 18.)

1. Legal standard

In cases where state sovereign or governmental immunity is

asserted, “[a] motion to dismiss based on sovereign immunity is a

jurisdictional issue.” Simmons v. Corizon Health, Inc., 122 F.

Supp. 3d 255, 268 (M.D.N.C. 2015) (citing M. Series Rebuild, LLC

v. Town of Mount Pleasant, Inc., 730 S.E.2d 254, 257 (N.C. Ct.

App. 2012)). When a state supreme court “has spoken neither

directly nor indirectly on the particular issue” at hand, a federal

court must predict how that court would rule “if presented with

the issue.” See Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt

Beverage Co., 433 F.3d 365, 369 (4th Cir. 2005) (citation omitted).

In such cases, the decisions of the state court of appeals are the

“next best indicia” of how the state supreme court would rule.

See Priv. Mortg. Inv. Servs., Inc. v. Hotel & Club Assocs., Inc.,

296 F.3d 308, 312 (4th Cir. 2002).

Although the Supreme Court of North Carolina has not addressed

the issue, the North Carolina Court of Appeals has indicated that

“the general rule is that sovereign immunity presents a question

of personal jurisdiction, not subject matter jurisdiction.” Green

v. Kearney, 690 S.E.2d 755, 760 (N.C. Ct. App. 2010); see also

Meherrin Indian Tribe v. Lewis, 677 S.E.2d 203, 207 (N.C. Ct. App.

2009) (“An appeal of a motion to dismiss based on sovereign

immunity presents a question of personal jurisdiction rather than

subject matter jurisdiction.”); Aliksa v. N.C. R.R. Co., No.

1:17CV428, 2018 WL 3466948, at *1 (M.D.N.C. July 18, 2018); but

see Johnson v. North Carolina, 905 F. Supp. 2d 712, 719 (W.D.N.C.

2012) (“[T]here is authority suggesting that motions to dismiss

based upon sovereign immunity may be properly granted pursuant to

Rule 12(b)(1) as opposed to 12(b)(2).”). Accordingly, this court

will consider the Board’s motion to dismiss on the basis of

governmental immunity pursuant to Federal Rule of Civil Procedure

12(b)(2).12

Under Rule 12(b)(2), plaintiffs must establish personal

jurisdiction by a preponderance of the evidence. Carefirst of

Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396

(4th Cir. 2003). “When, however, as here, a district court decides

a pretrial personal jurisdiction motion without conducting an

evidentiary hearing, the plaintiff need only make a prima facie

showing of personal jurisdiction.” Id. In deciding whether the

plaintiff has made a prima facie case of personal jurisdiction,

the district court must draw all reasonable inferences and resolve

all factual disputes in the plaintiff’s favor. Mylan Labs., Inc.

v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993); see also Carefirst

of Md., 334 F.3d at 396. The court may consider supporting

affidavits in making this determination. See Universal Leather,

12 As this court has previously noted, however, whether consideration is

made pursuant to Rule 12(b)(1) or (b)(2) appears to have no impact on

the method of review. See Pettiford v. City of Greensboro, 556 F. Supp.

2d 512, 524 n.8 (M.D.N.C. 2008).

LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014).

2. Waiver of governmental immunity

In North Carolina, “[a] county or city board of education is

a governmental agency, and therefore may not be liable in a tort

action except insofar as it has duly waived its immunity from tort

liability pursuant to statutory authority.” Overcash v.

Statesville City Bd. of Educ., 348 S.E.2d 524, 526 (N.C. Ct. App.

1986). Pursuant to North Carolina General Statute § 115C-42,

securing liability insurance is “the exclusive means for a

local board of education to waive immunity.” Frye v. Brunswick

Cnty. Bd. of Educ., 612 F. Supp. 2d 694, 702 (E.D.N.C. 2009)

(citing N.C. Gen. Stat. § 115C-42). North Carolina courts strictly

construe this statute against waiver. Herring v. Winston-

Salem/Forsyth Cnty. Bd. of Educ., 529 S.E.2d 458, 462 (N.C. Ct.

App. 2000). Additionally, a plaintiff must affirmatively plead

that governmental immunity has been waived. Suarez v. Charlotte-

Mecklenburg Sch., 123 F. Supp. 2d 883, 891–92 (W.D.N.C. 2000).

“[I]n the absence of an allegation in the complaint in a tort

action against a city board of education, to the effect that such

board has waived its immunity by the procurement of liability

insurance to cover such alleged negligence or tort, . . . such

complaint does not state a cause of action.” Fields v. Durham

City Bd. of Educ., 111 S.E.2d 910, 912 (N.C. 1960).

Here, the Board argues that Stevens has not properly pleaded

a waiver of governmental immunity. In response, Stevens points to

the complaint’s indication that the Board “has no immunity to this

claim and ha[s] otherwise waived immunity.” This language fails

to meet the required pleading standard for two reasons. First, it

relates only to Stevens’s claims under Title VII and § 1981. The

language appears twice in the complaint, once beneath the heading

“Count I (Violation of Title VII . . . and 42 U.S.C. § 1981)” and

once beneath the heading “Count II (Retaliation in Violation of

Section 1981 and Title VII).” (Doc. 15 ¶¶ 44, 49.) By its own

terms, therefore, the language is limited to the claims under which

it appears. (See id. (“[The Board] has no immunity to this claim

and ha[s] otherwise waived immunity.” (emphasis added)). Although

Stevens contends that the phrase “ha[s] otherwise waived immunity”

implies that the Board has waived immunity for every cause of

action brought (Doc. 22 at 10), she fails to explain why this

language then appears twice in the complaint, and both times

beneath a specific claim. Surely, if Stevens intended this

language to indicate a broad waiver of immunity for all claims

brought, such language would have needed to appear only once,

rather than be repeated beneath two distinct claims.

Second, even if this language did relate to all claims

brought, the complaint does not indicate how the Board waived its

immunity. Stevens provides no facts that indicate the Board waived

its immunity, such as an allegation that the Board purchased

insurance. Instead, the assertion of waiver is a conclusory

statement unsupported by fact. This assertion is insufficient to

sustain a tort claim against a governmental agency under North

Carolina law. See Fields, 111 S.E.2d at 912 (“[I]n the absence of

an allegation in the complaint . . . to the effect that such board

has waived its immunity by the procurement of liability insurance

. . . such complaint does not state a cause of action.” (emphasis

added)); Mullins by Mullins v. Friend, 449 S.E.2d 227, 230 (N.C.

Ct. App. 1994) (“If the plaintiff does not allege a waiver of

immunity by the purchase of insurance, the plaintiff has failed to

state a claim against the governmental unit.” (emphasis added)).

However, even if Stevens’s assertion of waiver were

adequately pleaded, this would not be sufficient to survive

dismissal. Along with its motion to dismiss, the Board has

submitted multiple affidavits indicating that the Board has not

purchased insurance such that immunity would be waived pursuant to

§ 115C-42. (See Docs. 17-7, 17-8.) Although the Board

participates in the North Carolina School Boards Trust (“NCSBT”),

a board's participation in the NCSBT does not waive governmental

immunity because the NCSBT does not qualify as liability insurance

under § 115C–42. See, e.g., Craig ex rel. Craig v. New Hanover

Bd. of Educ., 648 S.E.2d 923, 925 (N.C. Ct. App. 2007), rev'd on

other grounds, 678 S.E.2d 351 (N.C. 2009); Lail ex rel. Jestes v.

Cleveland Cnty. Bd. of Educ., 645 S.E.2d 180, 185 (N.C. Ct. App.

2007); Willett v. Chatham Cnty. Bd. of Educ., 625 S.E.2d 900, 901–

02 (N.C. Ct. App. 2006); Ripellino v. N.C. Sch. Bds. Ass'n, 581

S.E.2d 88, 92–93 (N.C. Ct. App. 2003). Stevens has made no

response to this. As such, the court cannot conclude that she has

alleged a prima facie case for jurisdiction over the Board in

relation to her state law claims.

Because Stevens’s state law claims are barred on the basis of

the Board’s governmental immunity, the court need not consider

whether these claims would otherwise survive dismissal pursuant to

Rule 12(b)(6). The Board’s motion to dismiss Stevens’s state law

claims will be granted.

III. CONCLUSION

For the reasons stated,

IT IS THEREFORE ORDERED that Defendant’s motion to dismiss

(Doc. 17) is GRANTED IN PART and DENIED IN PART as follows:

1. The motion to dismiss claim one is DENIED in relation to

Plaintiff’s Title VII failure to promote claim, but is GRANTED in

relation to Plaintiff’s Title VII discriminatory termination and

§ 1981 claims, which are DISMISSED;

2. The motion to dismiss claim two is DENIED in relation to

Plaintiff’s Title VII retaliatory discharge claim but is GRANTED

in relation to Plaintiff’s § 1981 claim, which is DISMISSED;

3. The motion to dismiss claims three (violations of

§ 1983), four (racially hostile work environment in violation of

Title VII), five (intentional infliction of emotional distress),

six (wrongful discharge in violation of public policy), and seven

(violation of the EEPA) is GRANTED, and those claims are DISMISSED.

/s/ Thomas D. Schroeder

United States District Judge

January 22, 2021